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DNA tests could clear more, new study finds

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Bennett S. Barbour

Bennett S. Barbour of Charles City County was cleared of a rape conviction by DNA testing in 2010, but he did not find out until a volunteer lawyer called 18 months later.

A new study of data from Virginia's DNA testing project estimates that as many as 15 percent of people found guilty in sexual assault cases between 1973 and 1987 were wrongfully convicted.

According to an Urban Institute report released Monday, DNA supports the innocence of 38 people — five convicted in murders and 33 in sexual assaults — indicating that more people are left to be cleared of wrongful convictions.

The Virginia DNA project began in 2005 after sample testing cleared two men of rapes. Testing in hundreds of cases since then has exonerated three more people.

Also Monday, the Virginia Department of Forensic Science released the DNA reports in 29 of the 38 cases cited by the Urban Institute that have been cleared for release by prosecutors.

Earlier this year, the General Assembly ordered the department to release by July 1 the reports in all 78 cases in which testing failed to identify the convicted person's DNA, except for reports that authorities say are critical to a current investigation.

Reports released Monday to the Richmond Times-Dispatch include those of three men who have been exonerated: Phillip Thurman of Alexandria, Bennett S. Barbour of Charles City County and Victor Burnette of Richmond.

DNA exclusion does not necessarily prove innocence. The lack of DNA may have no bearing on guilt or innocence. Also, more than a dozen of the 78 convicted people are dead, and some of those who are alive have not been found.

The Urban Institute, which conducts research on social, economic and criminal justice issues, had access to the Virginia data for its study under a $4.5 million grant from the U.S. Department of Justice that funded most of the Virginia testing.

The institute estimates a wrongful conviction rate in sexual assault cases of 8 percent to 15 percent, comparable to the results in sample testing that exonerated two people and prompted Gov. Mark R. Warner to order the full Virginia DNA project in 2005.

"This is the most methodologically sound study that's been done, and the rate is much higher than has been shown in other studies," said Jon Gould, director of the Washington Institute for Public and International Affairs Research at American University.

Steven D. Benjamin, a member of the Virginia Board of Forensic Science and president-elect of the National Association of Criminal Defense Lawyers, said the Urban Institute study should set off alarms.

"Each defendant in the cases that support innocence should be interviewed immediately and the case investigated thoroughly," said Benjamin, a Richmond attorney. "If any one of these (38) is innocent, each day … is an injustice."

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Brian Gottstein, spokesman for Virginia Attorney General Ken Cuccinelli, said the DNA test results serve as a starting point for detecting potential wrongful convictions and for local law enforcement and prosecutors investigating those cases.

He said the attorney general and his staff are ready to help local prosecutors and law enforcement in cases where certain evidence excludes the convicted and that they will continue to move swiftly where the evidence as a whole exonerates an individual.

Nearly 800 cases involving 1,100 convicted people have been tested in the Virginia DNA project since 2005, but only three more people have been exonerated in addition to the two cleared in sample testing seven years ago.

The Urban Institute says the Virginia data — DNA results in a random sample of suspects convicted of rape, murder and other serious crimes — are better for such studies on wrongful conviction rates than earlier data.

"This 'test-them-all' approach to post-conviction DNA testing has never been replicated by any other state," the report says.

The report has an acknowledged weakness: The contract for the study expired before researchers could get to courthouses to review the old trial files to better determine the context and significance of the DNA results.

The institute said available information on the cases was limited to data in the old state files, which mainly included basic facts about the crime and the results of the original forensic tests and the results of more recent DNA analysis.

Rockne Harmon, a former California district attorney and DNA expert, said the institute should have at least conducted a representative sampling of the old court files.

Among other things, rape victims are frequently asked if they had consensual sex within 72 hours of an assault. "Without this (kind of) information, little can be said about the materiality of finding a matching or non-matching DNA profile," Harmon said.

"I have seen cold hits on a rape victim's husband where there is no other foreign DNA profile. This is compounded by earlier research that showed that rapists don't always … deposit their DNA in a rape," he said.

However, John Roman, the lead researcher in the project, said that even if all the court records were reviewed, he would not expect many of the 38 cases to drop out.

Though unable to review old court files, the institute said the Virginia data "likely provide the best opportunity to date to understand the rate of wrongful conviction."

The report concludes, "Whether the true rate of potential wrongful conviction is eight percent or 15 percent … is not as important as the finding that these results require a strong and coordinated policy response."

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Brandon Garrett, a University of Virginia law professor, said he thinks the study needs a strong response from Virginia's policymakers.

"I think this report isn't the final report; it's just the beginning," he said. "There's still a lot of (work) to do and a lot of questions that need to be answered."

The Virginia Department of Forensic Science does not determine the legal significance of test results; the department forwarded them to local police and prosecutors to take action as needed.

Peter Marone, director of the Virginia Department of Corrections, attended Monday's presentation at the 2012 National Institute of Justice Conference at the Marriott Crystal Gateway in Arlington County.

"We do that lab work," Marone said. "I don't know what those (court) records show. This is a starting point. We need to go to the courthouses."

Critics of the Virginia effort such as Benjamin and Peter Neufeld, a co-founder of the Innocence Project, want to allow defense lawyers access to project results, along with police and prosecutors.

They also urge that cases of possible wrongful convictions be pursued even where the convicted person is dead in order to clear their name and to learn what led to the wrongful conviction, to help prevent future ones.

The Department of Forensic Science and the Virginia Board of Forensic Science have long resisted efforts to reveal them to anyone other than law enforcement.

The convicted people were not going to be told about the testing until 2008, when the assembly directed they be notified.

This year, the assembly, concerned that potential exonerations were not being adequately investigated, directed the department, effective July 1, to release the test results in cases where testing failed to find the convicted person's DNA.

The legislators' concern stemmed from the case of Barbour, a Charles City resident who was convicted of a 1978 rape in Williamsburg. He was one of the people excluded by testing who could not be initially found by mail.

Testing in June 2010 cleared him and implicated a convicted rapist who will be tried for the crime in August. Barbour did not learn about the DNA testing until 18 months later, when a lawyer tracked him down by phone.


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